Opinion
16357.
OCTOBER 13, 1948.
Injunction. Before Judge Hendrix. Fulton Superior Court. June 23, 1948.
Thomas E. McLemore, for plaintiffs in error.
Kelley, Zellars Foster, W. S. Northcutt, Durwood T. Pye, and E. A. Wright, contra.
1. In dispossessory proceedings under Chapter 61-3 of the Code the tenant is afforded an adequate remedy at law under § 61-303, and inability because of poverty to give the bond there required affords no ground for equitable interference. Unless other equitable relief is sought or peculiar equitable reasons exist, rendering the remedy at law inadequate, the proceedings under Chapter 61-3 will not be enjoined.
2. In the present case the allegations of the tenant seeking to enjoin the dispossessory proceedings are insufficient, for the reasons pointed out in the corresponding division of the opinion, to allege a cause of action against any of the defendants. The court erred in overruling the general demurrer thereto.
No. 16357. OCTOBER 13, 1948.
George W. Merck brought a suit in equity against James C. Flynn, a resident of the State of New York, and J. M. George, Marshal of the Civil Court of Fulton County, and his deputies, R. O. Walters and Hoyt Peavy, and Marion Builders Investment Company, the petition alleging substantially the following: On January 23, 1948, the defendant Flynn procured a dispossessory warrant against the petitioner in the Civil Court of Fulton County, and placed the same in the hands of the defendant marshal and his deputies for execution. The petitioner has by the said deputy marshals been served with notice to vacate within three days. The petitioner is not a tenant of the defendant Flynn. The relationship of landlord and tenant does not exist between them and has never existed between them or anyone else. The petitioner has been in possession of the described property since 1932 under a contract between him and John C. Flynn, "under which said contract your petitioner was to reside upon said property and look after the same for the said John C. Flynn under a contract and agreement between them that [for] petitioner's services in doing so the said John C. Flynn would, by deed or will, vest your petitioner with the fee-simple title to a one-half undivided interest therein, provided your petitioner would continue to reside upon said property or until such time as the said John C. Flynn decided to sell said property or until his death." The petitioner has remained upon the property since 1932, and has performed valuable services in caring for the same, protecting the timber growing thereon and generally in looking after said property during the absence of the said John C. Flynn, who is a resident of the State of New York, and depended upon the petitioner for the rendition of such services. John C. Flynn was the owner and holder of the fee-simple title to the property in question, and at his death, which occurred during 1945, the only right which the defendant, James C. Flynn, could have to the said property is as an heir at law of the said John C. Flynn. It was alleged upon information and belief that no administrator had been appointed by the Ordinary of Fulton County, and administration had not been applied for in such ordinary's office, either by an administrator or an executor. Therefore, the defendant James C. Flynn is not a proper person and had no legal right to prosecute a dispossessory warrant against the petitioner and to deprive him of his lawful possession. Because of poverty the petitioner is unable to make bond and defend the dispossessory proceedings. The defendant Flynn is a non-resident, and the petitioner would be put to great expense and inconvenience in bringing any suit against him for damages in the event the petitioner is wrongfully dispossessed or removed from the said property. The defendant Flynn "has purported to convey said property by deed to Marion Builders Investment Company and/or Marvin Sullivan and/or and other persons to petitioner unknown." Marvin Sullivan claims to have purchased some interest in the property and proposes to place a sawmill thereon and cut timber in violation of the rights of the petitioner. The defendants Sullivan and Flynn have conspired to take possession of the property and to oust the petitioner, although they know that he has been in possession since 1932 and claims the right to the said property by virtue of a contract between the petitioner and John C. Flynn as alleged in the petition.
By amendment it is alleged on information and belief that the defendant Flynn owns and claims no property in the State of Georgia except that in controversy, and in the event the petitioner is dispossessed it would be necessary for him to maintain in the State of New York any suit he might have against the defendant Flynn. The only relief prayed for was: (1) for process, (2) that the defendant Flynn be enjoined from prosecuting the dispossessory proceedings, (3) that the marshal and his deputies be enjoined from dispossessing the petitioner, (4) that the other defendants be enjoined from entering upon the said premises or interfering with the rights of the petitioner with respect thereto and from cutting timber from said premises or doing any act in violation of the petitioner's rights, (5) for a rule nisi, and (6) for general relief.
The exception here is to the judgment overruling the general demurrer of the defendants to the petition as amended.
1. Our Code, Chapter 61-3, prescribes the procedure at law for dispossessing a tenant, and § 61-303 affords one who has been proceeded against by dispossessory warrant a full and adequate legal remedy. It is there provided that the tenant may arrest such dispossessory proceedings by declaring on oath that his lease or term has not expired, that he is not holding over, or that the rent is not due or "that he does not hold the premises, either by lease, or rent, or at will, or by sufferance, or otherwise from the person who made the affidavit on which the warrant issued, or from anyone under whom he claims the premises, or from anyone claiming the premises under him: Provided, such tenant shall at the same time tender a bond with good security, payable to the landlord, for the payment of such sum, with costs, as may be recovered against him on the trial of the case." The Code, § 61-305, provides that, in the event the issue thus made between the landlord and the tenant is determined against the tenant, the landlord shall have judgment for double the amount of rent agreed upon or the amount which the premises are shown to be worth. In view of some of the decisions which we shall later mention in this opinion, we would emphasize that § 61-303 affords a remedy to one against whom dispossessory proceedings are brought, although such party is not the tenant and denies that there exists a relationship of landlord and tenant. It is also well at this point to observe that the statutory procedure clearly intends that the landlord be protected against ill-founded claims of a tenant, in that, as a condition precedent to resisting the dispossessory proceedings, the tenant not only is required to give bond to insure the payment of the actual rent, but he and his bondsmen are obligated and required to pay double rent in the event his defense is adjudicated to be without merit. In Napier v. Varner, 149 Ga. 586 ( 101 S.E. 580), this court held that the provision of § 61-303 afforded an adequate remedy at law to the tenant, and that the inability of the tenant to give bond would not afford sufficient ground for going into equity and enjoining the dispossessory proceedings. The same principle was declared by this court in Carlton v. Hibernia Savings c. Assn., 185 Ga. 425 (2) ( 195 S.E. 764), and Morrison v. Roberts, 195 Ga. 45 (4) ( 23 S.E.2d 164). See also DeFloreo v. Tarvin, 193 Ga. 760 ( 20 S.E.2d 29). Looking to the statute and to the decisions of this court just cited, it would seem that there is little excuse for uncertainty, and the doubt which now exists as to whether or not dispossessory proceedings in conformity with the statute without more could ever be enjoined in a court of equity. But a number of decisions of this court arrived at by a consideration of the peculiar facts in each individual case might at first seem to be in conflict with those decisions above cited. Suits in equity to enjoin dispossessory proceedings were upheld in Gilmore v. Wells, 78 Ga. 197; Smith v. Wynn, 111 Ga. 884 ( 36 S.E. 970); Pope v. Thompson, 157 Ga. 891 ( 122 S.E. 604); Harvey v. Atlanta Lowry National Bank, 164 Ga. 625 ( 139 S.E. 147); Sims v. Etheridge, 169 Ga. 400 (1) ( 150 S.E. 647). In each of those cases, however, the record shows that there were other equitable matters involved aside from the mere desire to enjoin the dispossessory proceedings. Undoubtedly where grounds are alleged to authorize the grant of a prayer for cancellation or decree of title or other equitable relief, a petition will not be dismissed on demurrer because it also seeks to enjoin prosecution of a dispossessory warrant. We think it can be held on sound legal principles that the statute provides a complete and adequate remedy against dispossessory proceedings, and that inability of a tenant because of poverty to give the required bond affords no ground for equitable interference.
2. We first observe that the present petition seeks no relief against the plaintiff in the dispossessory proceedings except injunction. There is no prayer for specific performance, cancellation, or decree of title. The attempt to set out a contract is too indefinite to constitute an enforceable contract. If the petitioner is, as shown by the petition, unable to say whether the terms of the contract provide that the petitioner shall have an interest in the premises conveyed by deed or devised by will, then no court can say. If the petitioner is unable to allege whether his possession and the services to be rendered by him should continue until the owner sold the premises or until the owner's death, no court could render judgment fixing that time. As pleaded, the entire claim, based upon the alleged agreement, which is void for indefiniteness, would constitute no defense to the dispossessory proceedings. Therefore, it must be held as to the defendant Flynn and the marshal and his deputies that the court erred in overruling the general demurrer for the reasons, (1) that an adequate remedy at law was available, and (2) that no ground for equitable relief is alleged. The allegations with reference to the other defendants are insufficient to sustain the petition against the demurrer, because no facts are alleged to show injury or threat of injury. The allegations amount to no more than a mere apprehension. In addition to this, there is no allegation of insolvency, and it must be assumed that, if any injury is sustained, compensation therefor as damages in a suit at law would be an adequate remedy. For all of the foregoing reasons, the trial court erred in overruling the general demurrer.
Judgment reversed. All the Justices concur, except Bell, J., absent on account of illness.